Global recognition of the adverse effects on the environment occasioned by the drilling of oil wells, constant release of chemicals, particularly from the burning of fossil fuel, emission of biocidal products and hazardous substances, led to the introduction and subsequent adoption of the ‘polluter pays’ principle as a means to deter massive pollution of the environment all over the world. Several countries, including Nigeria, have adopted this principle as part of their environmental policy. This post will examine the development of the principle under international law, and then highlight its acceptance into the Nigerian Legal System through legislative instruments and judicial decisions.

THE ‘POLLUTER PAYS’ PRINCIPLE UNDER INTERNATIONAL LAW

The ‘polluter pays’ principle is an internationally recognized fundamental principle (i.e jus cogens) on environment protection^[1] that stipulates that in the event of pollution to the environment in the course of industrial activities such as mining, gas flaring, and drilling of oil wells, the one whose actions cause damage to the environment is liable to pay for its reparations. Thus, responsibility is imposed on polluters to bear the costs of managing pollution, compensating victims, and being responsible for eventual environmental damage.^[2] 

Life was breathed into the principle for the first time in the early 1970s when it was adopted at the Organisation for Economic Co-operation and Development’s (OECD) seminar held in 1971.^[3] Subsequently, it was imbibed by the Rio Declaration^[4] which stipulates in Principle 16 that national authorities should promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should bear the cost of pollution. 

NIGERIA’S ACCEPTANCE OF THE ‘POLLUTER PAYS’ PRINCIPLE

Since 1956 when oil was discovered in commercial quantity in Oloibiri, Bayelsa State, Nigeria has left traces of her acceptance of the polluter pays principle in several legislative instruments. These snippets evident in different provisions of Nigerian Statutes suggest that there is in fact recognition of the polluter pays principle in Nigeria. For instance, to adequately address environmental problems and challenges, a national policy on the environment stating that the polluter pays principle must be complied with^[5] was promulgated in 1989.^[6] 

Also, the 1991 Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) provides that: ‘it shall be the responsibility of a spiller to restore to as much as possible the original state of any impacted environment.’^[7] Similarly, the Flare Gas Regulations (Prevention of Waste and Pollution) 2018^[8] which provides the legal framework for the Nigerian Gas Flare Commercialisation Programme (NGFCP) introduces a new penalty for gas flaring by adopting the ‘polluter pays’ principle in the form of a carbon tax.

More recently, the Petroleum Industry Act of 2021 in section 103 mandates financial contributions for the remediation of environmental damage from licensees of petroleum operations. Although the principle is not outrightly spelt out, it is clear that the drafters had in mind to input a provision that catered for situations of environmental degradation from upstream or downstream petroleum operations. 

The Nigerian courts have also affirmed the validity of the principle. The case of Nigerian Agip Oil Co Ltd v Akpati & Others^[9] is instructive in this regard. In this case, the pipeline carrying the appellant’s crude oil leaked and spilled oil on the respondent’s fish pond and channels. The Court of Appeal held the appellant responsible for the oil spill and damages, entered judgement favouring the respondent and awarded the cost of N35,000,000. as general damages against the appellant.^[10]

Notwithstanding the above, there are assertions that in Nigeria, the principle is only applied as a strict liability with more emphasis on the polluter paying for the damage than on the actual repair of the damage to the environment.^[11] 

CONCLUSION

It is commendable to see that Nigeria has embraced the punitive ‘polluter pays’ principle as a measure to combat massive pollution of the environment. Clearly, considering the inclusion of the principle in several national enactments as well as relevant judicial decisions on the subject matter, it can be deduced that the West African Giant is very much interested in upholding the polluter pays principle in line with the realisation of the Paris Agreement^[12] and the interlinked Sustainable Development Goals.^[13] 

References

[1] C.M. Inwang Ph.D., ‘Application of the Polluter Pays Principle in Environmental Management’, International Journal of Innovative Legal & Political Studies, 9(1):74-80, Jan.-Mar., 2021.

[2] O.O. Ojo, ‘Polluter Pays Principle Under Nigerian Environmental Law’, (June 2021) Environmental Liability – Law, Policy and Practice, O. P. Jindal Global University.

[3] ibid (n 1).

[4] The United Nations Conference on Environment and Development, Rio de Janeiro, 1992.

[5] Section 1 of the National Policy on the Environment.

[6] This policy was revised in 1999 and 2016.

[7] Part VIII, Article B, 2.11.1.

[8] Federal Republic of Nigeria, Flare Gas Regulations (Prevention of Waste and Pollution) (FRN, July, 2018), section 13.

[9] Nigerian Agip Oil Co Ltd v Akpati & Others (2018) LPELR 45145 (CA).

[10] See also similar decisions in Shell Petroleum Dev Co. (Nig) Ltd v Amaro (2000) 10 NWLR (Pt 675) 248; Centre For Oil Pollution Watch v Nigeria National Petroleum Corporation (2013) LPELR 20075(CA.

[11] ibid (n 2).

[12] Conference of the Parties, Adoption of the Paris Agreement, Dec. 12, 2015. U.N. Doc. FCCC/CP/2015/L.9/Rev/1 (Dec. 12, 2015).

[13] SDG 13 on Climate Action Borders on Achieving a Cleaner, Healthier Environment.